Communicated on 16 May 2018
FOURTH SECTION
Application no. 49207/10
Gennadiy Vadimovich KHARITONOV
against Ukraine
lodged on 3 August 2010
STATEMENT OF FACTS
The applicant, Mr Gennadiy Vadimovich Kharitonov (aka Ghenadie Haritonov), is a Ukrainian national, who was born in 1970 and lives in Kherson. He is represented before the Court by Ms Yakovyshyn, a lawyer practising in Chernivtsi.
A. Circumstances of the case
The applicant had resided in the Republic of Moldova from 2000 to February 2007 when he moved to Ukraine, escaping criminal prosecution (see for more details Haritonov v. Moldova, no. 15868/07, §§ 6-11, 5 July 2011). On 15 June 2007 the applicant was sentenced in absentia in Moldova and learned about it only in December 2010.
In 2009 he applied for a new Ukrainian citizen’s passport for travel abroad (паспорт громадянина України для виїзду за кордон; “external passport”), but his application was refused.
Having made several requests for information to the issuing authorities, the applicant learned that his new passport had been prepared but could not be given to him as his right to leave the territory of Ukraine was temporarily limited on the basis of Section 6 of the Procedure for leaving Ukraine and entering Ukraine by Ukrainian citizens Act (hereinafter - the Entry and Exit Act). This Section provided for restrictions in leaving Ukraine in case of pending criminal proceedings against the person concerned. There was no criminal proceedings pending against the applicant in Ukraine, but authorities had been informed that the applicant was wanted by the law-enforcement authorities of the Republic of Moldova.
The applicant’s complaints to different executive authorities having been to no avail, the applicant lodged an administrative complaint against the local police and migration service with the Kherson Administrative Court (hereinafter - the Kherson Court) challenging the refusal of passport and the ban to leave the country.
On 29 September 2010 the Kherson Court rejected the applicant’s complaint. In its decision, the court noted that the applicant had been rightly refused the new external passport, since there were pending criminal proceedings initiated against him in Moldova. According to the Kherson Court, the relevant provision of the Entry and Exit Act should be read in the light of international obligations of Ukraine, namely the bilateral treaty between Moldova and Ukraine and the CIS (Commonwealth of Independent States) Convention on international legal assistance (see the Relevant domestic and international law and practice part). Both treaties provided for an obligation for one State to accept the criminal case concerning its permanent resident from the other State. Given that the Moldovan law-enforcement authorities placed the applicant in the CIS database of wanted persons, Ukraine had international obligations to prosecute its national, who was a criminal suspect in the Republic of Moldova. The Kherson Court concluded that the Police and the Migration Service acted within their competence and had lawfully limited the applicant’s rights.
By its decision of 1 February 2012, the Odesa Administrative Court of Appeal upheld the decision of the Kherson Court.
B. Relevant domestic and international law and practice
1. Constitution of Ukraine 1996
The relevant provisions of the Constitution read as follows:
Article 9
“International treaties that are in force and are agreed to be binding by the Verkhovna Rada of Ukraine are part of the national legislation of Ukraine.”
Article 25
“... A citizen of Ukraine shall not be expelled from Ukraine or surrendered to another State ...”
2. International Treaties of Ukraine Act 2004
Section 19
The effect of international treaties of Ukraine on the territory of Ukraine
“1. International treaties that are in force and are agreed to be binding by the Verkhovna Rada of Ukraine are part of the national legislation of Ukraine and shall be applied in the manner prescribed for the norms of the national legislation
2. If an international treaty of Ukraine, which entered into force in the established procedure, stipulates rules different from those provided for in a relevant act of the legislation of Ukraine, the rules of the international treaty shall apply.”
3. Procedure for leaving Ukraine and entering Ukraine by Ukrainian citizens Act, 1994
Section 6
Grounds for temporary restrictions on the right of leaving abroad
for citizens of Ukraine
“A citizen of Ukraine may be temporarily denied in issuing a[n external] passport in cases, when:
...
3) the criminal proceedings are initiated against him – until the end of such proceedings ...”
4. Vienna Convention on the Law of Treaties 1969
Article 26
“Pacta sunt servanda”
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
Article 27
Internal law and observance of treaties
“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”
5. CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 (“the Minsk Convention”)
Article 72
Obligation to take criminal proceedings
“1. Every Contracting State, upon request of other Contracting State, shall take criminal proceedings in accordance with its legislation against its own citizens who are suspected of having committed a crime on the territory of the requesting Contracting State ...”
6. Bilateral Treaty between Ukraine and the Republic of Moldova on legal assistance and legal relations in civil and criminal matters, 1993
Under Article 4 of the Treaty the scope of cooperation includes the transfer of proceedings in criminal cases.
Relevant part of Article 53 of the Treaty provides as follows:
Obligation to take criminal proceedings
“1. Each Contracting State shall be obliged, upon request of the other Contracting State, to take criminal proceedings against its citizens that permanently reside on its territory and who are suspected of having committed a crime on the territory of the Requesting State ...”
COMPLAINTS
The applicant complains under Article 2 of Protocol No. 4 to the Convention that the Ukrainian authorities have unlawfully restricted his freedom of movement by refusing to issue him a new external passport on the ground that criminal proceedings were pending against him in the Republic of Moldova.
QUESTION TO THE PARTIES
Was the restriction on the applicant’s right to be issued with a new external passport which, had he so wished, could have permitted him to leave the country, “necessary in a democratic society” and compatible with Article 2 of Protocol No. 4?
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